JOSE RODRIGUEZ et al. v. OWNERS CORP., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0920-05T50920-05T5

JOSE RODRIGUEZ and CARMEN

RODRIGUEZ,

Plaintiffs-Appellants,

v.

OWNERS CORP., FRANK TABONE,

GOODSTEIN MANAGEMENT, INC.,

AMERICAN SCAFFOLDING CO.,

MACHAL SERVICES SYSTEMS CORP.,

THE COLONY and KELYN Y. FUNEZ,

Defendants,

and

1530 OWNERS CORP., AMERICAN

SCAFFOLDING PARTS CO., O & S

ASSOCIATES, INC., and WACHOVIA/

TRIBUS COMPANY,

Defendants-Respondents,

and

1530 OWNERS CORP., GOODSTEIN

MANAGEMENT, INC. and FRANK

TABONE,

Third-Party Plaintiffs,

v.

ZURICH INSURANCE COMPANY, ZURICH

INSURANCE COMPANY AS PARENT TO

STEADFAST INSURANCE COMPANY,

STEADFAST INSURANCE COMPANY, TRIBUS

COMPANY, AMERICAN SCAFFOLD and

AM&G MASONS,

Third-Party Defendants.

____________________________________________

 

Argued October 18, 2006 - Decided November 8, 2006

Before Judges Parker, C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-6188-02.

Richard Galex argued the cause for appellants (Galex Wolf, attorneys; Mr. Galex, on the brief).

Peter A. Piro argued the cause for respondent O & A Associates, Inc. (Hack, Piro, O'Day, Merklinger, Wallace & McKenna, attorneys; Mr. Piro, on the brief).

Gerald Kaplan argued the cause for respondent 1530 Owners Corp. (Methfessel & Werbel, attorneys; Edward L. Thornton, on the brief).

Charles T. McCook, Jr. argued the cause for respondent American Scaffolding Parts Co. (Bumgardner, Ellis, McCook & Kingsley, attorneys; Mr. McCook, on the brief.

Stevens & Schwab, attorneys for respondent Wachovia/Tribus Company (David R. Cosgrove, of counsel and on the brief).

PER CURIAM

Plaintiff Jose Rodriguez alleged he suffered personal injuries as a consequence of falling through a skylight in a roof while removing planking that his employer, American Scaffolding Parts Corp. (American Scaffolding), had been hired to place over the roof. The complaint he and his wife filed sought damages from, among others, defendants 1530 Owners Corporation (the landowner) and O & S Associates, Inc. (O&S), both of whom successfully moved for summary judgment prior to trial. By way of this appeal, plaintiff contends that the trial judge mistakenly held that neither the landowner nor O&S owed him a duty of care. We conclude that the trial judge correctly entered summary judgment and affirm.

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2. In determining whether there exists a genuine issue of material fact that precludes summary judgment, a trial judge must consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

On appeal, the reviewing court applies the same legal standard as the trial judge in determining whether the grant or denial of summary judgment was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998); Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). When considering the legal issues presented, the trial judge's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference. Manalapan Realty L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The record reveals that the landowner holds title to a thirty-five-story apartment building in Fort Lee, and that, in 1998, the landowner decided to repair the building's balconies. The landowner contracted with M&G Waterproofing, LLC to do the balcony repairs and contracted with O&S to provide engineering services regarding the balcony repairs. The landowner also entered into a contract with American Scaffolding for the erection of bridging and scaffolding and to take other safety precautions to protect pedestrians and property from falling debris. Among the work performed by American Scaffolding was the placing of planking on the roof of a nearby thirteen-foot high garage-like structure to protect it from falling debris. The roof of this garage-like structure consisted of corrugated metal panels and four 53-inch by 36-inch fiberglass skylights.

The record indicates the existence of an industry standard that called for the spray-painting of the protective planking to indicate the location of skylights when such planks are in place. Although the president of American Scaffolding testified that the planks on the garage-like structure were, in fact, spray-painted in the fashion required by this standard, plaintiff testified to the contrary; accordingly, we are required to assume that the planks were not spray-painted so as to indicate the location of skylights.

Plaintiff contends that, on September 19, 2000, as the entire project neared its end, he was directed by his employer, American Scaffolding, to remove the planks covering the roof of the garage-like structure. He acknowledged in his deposition testimony that he was experienced in such matters, having performed similar tasks on numerous prior occasions. Plaintiff claimed that, because of the absence of spray-paint on the planks, he was unaware of the location of skylights in this roof and, as a result, while removing the planks, he inadvertently stepped off them, onto the roof and through a skylight.

On the eve of trial, Judge Hector R. Velazquez granted summary judgment in favor of the landowner, O&S and others. In summarizing the elements of plaintiff's causes of action, Judge Velazquez focused on whether the landowner or O&S owed plaintiff a duty of care.

In considering the landowner's liability, Judge Velazquez correctly observed that, as a general rule, a landowner must exercise reasonable care to protect invitees against known or reasonably discoverable dangers on the premises, but also that a landowner "does not owe a duty to an independent contractor and its employees to protect against the very hazards posed by the work contracted to be performed," citing Gibilterra v. Rosemawr Homes, Inc., 19 N.J. 166, 170 (1955). As the judge indicated, this exception from the general rule of landowner liability is based upon the policy consideration that a landowner should have the right to rely upon independent contractors being sufficiently skilled to recognize the dangers associated with the work they have been hired to perform and to adjust their methods accordingly to assure their own safety. See Accardi v. Enviro-Pak Sys. Co., 317 N.J. Super. 457, 462-63 (App. Div. 1999). Judge Velazquez also correctly recognized that this exception is not absolute, and does not have application when a landowner participates in and actively injects itself or exercises authority over the manner and means in which the contracted work was performed. Id. at 463.

Judge Velazquez analyzed the facts in light of these legal principles in the following way:

[T]he injuries suffered by the plain-tiff were incidental to the work he was hired to do, that is to remove wooden planks that covered the roof and protected the skylight from being damaged as a result of debris or other objects falling during the construction project which was in progress.

Based upon these uncontradicted find-ings, it does appear that [the landowner] did not owe the plaintiff a duty of care unless it was a general contractor or otherwise participated in or actively inter-fered with or controlled the scaffolding project.

The facts in this case show that it is undisputed that [the landowner] contracted with [M&G] to do repairs on its building. [M&G] thereafter subcontracted the actual work to another subcontractor. . . . [The landowner] also signed a separate contract directly with American Scaffold[ing] for bridging, fencing and protection work.

[The landowner] executed a standard form of agreement of the American Institute of Architects with [O&S], an engineering firm, to oversee the repair work to be done on this site. All of these contracts or agreements identified [the landowner] as the owner of the property in question and not as a contractor let alone a general contractor.

Whereas a general contractor generally hires and contracts with subcontractors, none of the contractual documents nor any of the evidence provided to this court referred to [American] Scaffold[ing], [M&G] or [O&S] as subcontractors to [the landowner]. There's also no proof or any evidence that [the landowner] in any way coordinated or supervised any of the actual work of the contractors which were performing work on the overall project.

The judge observed that while the landowner's on-site representative was provided information regarding the project's status, the landowner did "nothing remotely similar to what a general contractor normally does," and concluded that

simply because a [landowner] hires an independent contractor to perform work does not . . . mean that the landowner is a general contractor[, citing Dawson v. Bunker Hill Plaza Associates, 289 N.J. Super. 309 (App. Div. 1996), certif. denied, 146 N.J. 569 (1996)]. It follows therefore that simply because [the landowner] in this instance, hired a contractor to work on his building, that retention or hiring of a contractor does not make [the landowner] a general contractor overseeing this project or in control of the work being done on this site.

The facts do not support that [the landowner] had done this kind of work before and certainly the facts do not support that they engaged in any other kind of on site work or supervision. In fact all the evidence seems to indicate is that they hired these individuals to do the work, hired [O&S] to . . . oversee the work, some of the work being done, and they merely just paid the bills.

The facts do not reveal that [the landowner] retained any contractual auth-ority to dictate the means by which American Scaffolding was to do its work. The contract clearly gave responsibility to American Scaffolding, not only to do the work but to maintain and provide for all safety issues.

American Scaffolding . . . has candidly admitted that they were responsible for all safety issues. They further candidly admitted that their employees answer to no one other than their own supervisors or managers.

As [the landowner] cannot be deemed a general contractor and as it appears from the facts that it retained no right of control over the manner or means in which the work was to be performed, the facts support a finding by this court that the contractor, American Scaffolding, rather than [the landowner] is the proper party to be charged with the responsibility for preventing the risk involved in this case, the risk of harm that ultimately may have caused the injuries to this plaintiff.

. . . [The landowner] did not owe a duty of care to the plaintiff and that is because the accident occurred as a result of the operational hazards that are inherent in the work that was being done by the plaintiff.

We conclude that Judge Velazquez accurately described the factual circumstances and correctly applied the legal principles that govern the rights and liabilities of plaintiff and the landowner in this matter. The landowner was entitled to summary judgment, as the judge so concluded.

As for the claim against O&S, Judge Velazquez correctly recognized that because O&S was hired to provide engineering services on the balcony repair project, its liability had to be determined by resort to the principles of law outlined in Carvalho v. Toll Bros., 143 N.J. 565 (1996), which were later codified in N.J.S.A. 2A:29B-1. He observed that O&S's contract with the landowner did not indicate that O&S would be responsible for overseeing the work performed by American Scaffolding. Instead, O&S only assumed quality control responsibilities regarding the balcony repairs being performed by M&G. Moreover, despite these limits on O&S's contractual responsibilities, there was nothing presented to the trial judge which would suggest that O&S actually exercised control over American Scaffolding's performance; instead, as American Scaffolding conceded, it did not answer to O&S and did not believe that O&S had the authority to take or compel corrective measures of any safety issues generated by American Scaffolding's performance. And lastly, as Judge Velazquez observed, there was no evidence in the record that would suggest O&S had actual knowledge of an unsafe condition, a critical factor in determining an engineer's liability in such a circumstance. Carvalho, supra, 143 N.J. at 576-77; N.J.S.A. 2A:29B-1(c)(2). The judge summarized his holding regarding O&S in the following way:

The facts are also undisputed that the dangerous condition complained of did not exist in fact until the day of the accident, that is when the plaintiff decided to remove the wooden planks exposing the skylight. There's no evidence to indicate that this skylight or this roof had ever been exposed on any prior occasion. In fact the planks were placed there and the bridging was placed there to protect the skylight during the course of . . . the construction and thus . . . this court has to conclude that considerations of fairness and public policy do not support imposing a duty on [O&S] to exercise reasonable care to avoid the risk of injury to the plaintiff under the facts and circumstances presented before this court.

The risk of injury from falling through an unguarded or unprotected skylight in this context was not clearly foreseeable. While [O&S] had responsibility to monitor the progress of the work, the facts do not support a finding that this responsibility in any way implicated work safety conditions or any conditions relating to safety.

Also the facts do not show that [O&S] had any control over the plaintiff or over this work site and certainly the facts do not support a finding that [O&S] had any authority to stop work or to otherwise insure that safety measures were in place.

There certainly was not a sufficient connection between [O&S's] contractual responsibilities and the condition of the work site that created the unreasonable risk of injury to this plaintiff.

Finally and I think most compelling, it is clear from the evidence that [O&S] and its employees did not have any actual knowledge of a dangerous condition existing on this roof or any dangerous condition with respect to the scaffolding or bridging work being done by American [Scaffolding].

Judge Velazquez's analysis of the factual circumstances and the applicable legal principles was accurate and warranted the entry of summary judgment in favor of O&S.

We, thus, affirm substantially for the reasons set forth by Judge Velazquez in his thorough and well-reasoned oral decision.

Affirmed.

 

We also find no basis for concluding that OSHA's citation of the landowner, as a general contractor, for breaching an OSHA regulation required a contrary holding or the submission of the issues to the jury. See Dawson, supra, 289 N.J. Super. at 321.

(continued)

(continued)

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A-0920-05T5

November 8, 2006